Terms and Conditions
Standard Terms & Conditions – Progility Pty Ltd ABN 11 131 639 837 (Progility) – (Version September 2023)
1.1 These Standard Terms & Conditions (Terms) will govern the Customer engagement. The goods and/or services to be provided to the Customer will be specified in the proposal, statement of work (SoW), quote and/or sales order (all documents together form the Agreement).
1.2 The placing of an order will incorporate these Terms and no variation or modification of, or substitution for, these Terms will have effect unless specifically agreed in writing otherwise.
1.3 In the event of any conflict or inconsistency between one or more of the documents in the Agreement, the Terms prevail except where specifically agreed in writing otherwise.
2.1 Progility Technologies agrees to provide the goods in accordance with these Terms. Additionally, goods will be subject to any manufacturer’s terms, specifications with standard documentation applicable.
2.2 Unless otherwise specified and subject to there being no underlying vendor price increase, quotes remain valid for 30 days from the date of the quote. Where significant vendor price increases have arisen during this time a revision of the quote will be provided prior to acceptance of orders placed.
2.3 Orders placed are subject to confirmation by Progility Technologies by way of issuing a sales order and once confirmed may only be amended or cancelled prior to delivery with the written consent of Progility Technologies and may be subject to cancellation fees.
2.4 Prices for imported equipment are based upon the rates of exchange, marine freight and insurance, customs and primage duties ruling at the date of delivery. Any increase or decrease in costs resulting from changes in these rates affecting the equipment as delivered will be passed on to the Customer.
2.5 Failure on the part of the Australian Communications Authority to advise channel frequency allocations prior to the contracted delivery date shall be deemed to be force majeure and the equipment affected shall be tested utilising standard test frequencies. The Customer remains bound to purchase the equipment as tested. Any additional costs incurred for testing or adjustment required subsequent to channel frequency allocations will be charged to the Customer.
2.6 Risk passes to the Customer on delivery and title passes on payment in full.
3.1 Progility Technologies agrees to provide the services in accordance with these Terms and as specified in any proposal, SoW or quote. Where support and maintenance is proposed as part of the services, these will be subject to separate terms and conditions.
3.2 The Services may be changed only with the agreement of the parties as set out in a written variation.
- Installation & Commissioning
4.1 The date for installation or commissioning (when required) will be agreed between the parties and recorded in the project schedule.
4.2 If work cannot proceed on the agreed date (unless caused by Progility Technologies) additional fees may apply.
- Warranty for Goods and Services
5.1 Defects or failures in goods which, under proper use, arise solely from faulty materials or workmanship will be remedied by Progility Technologies, free of charge by repair or replacement, at Progility Technologies’ option, within a period of 12 months from delivery for goods or within 3 months from installation for workmanship. This warranty does not apply for vacuum tubes, lamps, fuses, test leads and batteries or copyrighted or licensed works in respect of the goods, or when any fault has been caused by misuse, neglect, accident or abnormal conditions (such as fire, water, lightning, frost) or operation, or by the fitting of parts or accessories not supplied by or by servicing not carried out by Progility Technologies, or use contrary to the manufacturer’s operating instructions. Progility Technologies will carry out repairs to mobile portable equipment not covered under warranty at one of our depots at the Customer’s expense. Should the repair assessment deem the equipment beyond economic repair, the Customer consents to Progility Technologies destroying/disposing of the equipment.
5.2 The warranty period for workmanship is 30 days from date of completion or acceptance (if required), whichever is the later.
5.3 This warranty does not apply until the Customer has paid in full for the goods or services.
5.4 Progility Technologies gives no warranty that the goods are fit for the purpose intended by the Customer.
5.5 If Progility Technologies is in breach of a condition or warranty implied by the Australian Consumer Law (ACL) then the liability of Progility Technologies is, to the extent permitted, limited to the repair or replacement of the goods or paying the cost thereof or the reperformance of the services, or paying the costs thereof.
5.6 ACL Consumer Notice – the following applies if you are a ‘consumer’ as defined by the ACL – our goods and services come with guarantees that cannot be excluded under the ACL. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure and have the services resupplied or be provided with the costs of resupplying the services.
- Customer Obligations
6.1 The Customer will comply with any obligations and must:
a) provide Progility Technologies with all reasonable information and access to its premises, sites, computer and network systems in order for Progility Technologies to provide the services;
b) if required, provide adequate conditions for Progility Technologies’ personnel at the Customer’s premises;
c) promptly notify Progility Technologies of any event or incidents that is likely to or will impact on the provision of the services; and
d) pay the fees in accordance with the terms of this Agreement.
- Fees and Payment
7.1 Payment terms are 30 days from date of invoice. Unless expressly stated to the contrary all amounts are exclusive of GST.
7.2 Goods and workmanship will be invoiced on delivery.
7.3 Where any proposal/SOW provides for design and or staging of equipment to meet requirements and is $50,000 or above in value (or as otherwise agreed), then Progility Technologies may invoice progressively as follows:
a) 30% of order value on confirmation of a sales order;
b) 40% on delivery of goods to the Customer site or Progility Technologies staging area or commencement of work on a SoW;
c) 30% on completion;
d) or any other variant determined by Progility Technologies as shown in the proposal/SoW.
7.4 If the Customer fails to pay an invoice when due, Progility Technologies may do any one or more of the following:
a) charge interest on the amount;
b) require payment in full before delivery of the goods or services;
c) repossess any goods; and/ or
d) terminate the Agreement.
7.5 The Customer may dispute an amount invoiced but must pay the undisputed portion in accordance with this clause.
7.6 Progility Technologies has the right to set-off any money owing by the Customer under this Agreement or otherwise.
- Intellectual Property, Confidentiality and Privacy
8.1 No rights of ownership to Progility Technologies’ pre-existing intellectual property are transferred under this Agreement. Progility Technologies will own any new intellectual property created in the course of providing the services.
8.2 A party must not, without the prior written approval of the other party, disclose the other party’s confidential information, unless it is legally compelled to disclose the other party’s confidential information.
8.3 Both parties agree to comply with all privacy laws in relation to any and all personal information that it collects from the other party in connection with this Agreement.
- Limitation of Liability
9.1 A party’s cumulative liability is limited to the total fees paid or payable by the Customer under the applicable sales order (except amounts paid or payable by the Customer to Progility Technologies are in addition for the Customer’s liability to Progility Technologies), except for liability for personal injury/ death or property damage which is limited to its insurances.
9.2 Neither party will be liable for indirect or consequential loss, or loss of revenue, profits, opportunity business, anticipated savings or loss of data.
10.1 Either party may terminate a sales order immediately by written notice upon the occurrence of one of the following events:
a) if the other party is in breach of the sales order and that other party has failed to remedy that breach within thirty (30) days of a written notice, specifying the breach and requiring it to be remedied;
b) the other party is in breach of the sales orders and that breach is not capable of remedy;
c) an insolvency event occurs in respect of the other party.
10.2 Progility Technologies may terminate a sales order for non-payment after providing the Customer with 14 days’ notice and payment is not received within this period.
10.3 Termination of a sales order does not affect other sales orders that are in place between the parties which remain in force unless terminated according to this clause.
10.4 Either party may terminate this Agreement on 30 days’ notice if there are no active sales orders in place.
10.5 Termination shall not prejudice or affect any right or action which shall have accrued or shall thereafter accrue to either party.
10.6 The following clauses survive termination of this Agreement: clause 8 (Intellectual Property, Confidentiality & Privacy), clause 9 (Limitation of Liability), clause 13.2 (Non-Solicitation), clause 11 (Consequences of Termination) and this clause 10.6.
- Consequences of Termination
11.1 Upon termination or expiration of this Agreement:
a) all money due by the Customer to Progility Technologies under this Agreement must be paid in full;
b) each party must return to the other party or (if requested by the other party) destroy, all confidential information belonging to the other party.
- Force Majeure
12.1 If a party is prevented from, or delayed in, performance an obligation outside of its reasonable control (force majeure) then the obligations (except the obligation to pay fees) is extended by the duration of the force majeure.
13.1 This Agreement applies to the exclusion of any Customer standard terms or conditions, despite any statement to the contrary.
13.2 A party will not, without the prior written consent of the other party, at any time during the term and for six months thereafter solicit or encourage any employee or contractor of the other party who is or was directly involved in performing this Agreement, to leave the employ of the other party.
13.3 If a provision of this Agreement is illegal, invalid, unenforceable or void in a jurisdiction it is severed for that jurisdiction and the remainder of the Agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected.
13.4 A variation to this Agreement is not effective unless it is in writing and signed by the parties.
13.5 A party cannot assign any or all of its rights under this Agreement without the prior written consent of the other party, which will not be unreasonably withheld, provided that Progility Technologies may at any time assign all or any of its rights or obligations under this Agreement to a related company.
13.6 A party’s waiver of a right under or relating to this Agreement, whether prospectively or retrospectively, is not effective unless it is in writing and signed by that party.
13.7 Notices must be in writing and sent to [email protected]
13.8 This Agreement may be executed in counterparts each of which will be considered an original but all of which will constitute one and the same instrument.
13.9 This Agreement is the entire agreement and understanding between the parties relating to the subject matter of the Agreement; and supersedes any prior agreement, representation (written or oral) or understanding on anything connected with that subject matter.
13.10 This Agreement is governed by and construed in accordance with the laws of Victoria, Australia.